HIPAA and State Discovery Practices

Because of HIPAA's vast scope and because of its wording, that it “shall supercede any contrary provision of state law,” attorneys have begun to look to HIPAA as a means to preempt unfavorable multi-state discovery practices involving personal injury plaintiffs. An example of such a discovery practice that has recently come under fire is the practice of conducting ex parte interviews of a personal injury plaintiff's health care providers. As this article demonstrates, this practice is a time- and cost-effective alternative to conducting multiple, and potentially fruitless, formal depositions of each and every health care provider potentially involved in the treatment of a personal injury plaintiff. The practice is also currently employed in as many as 25 states, as well as in the District of Columbia.

This article specifically focuses on why HIPAA does not preempt the multi-state practice of attorney ex parte interviews with a personal injury plaintiff's health care providers. First, we examine the multi-state perspective on this discovery practice, with an emphasis on the policies in support of and against its use. Second, we focus on the scope of HIPAA's preemption language, demonstrating that Congress never intended for HIPAA to preempt multistate discovery practices employed only after personal injury plaintiffs put their medical conditions in issue. By focusing on this single example of ex parte interviews, it is our hope to keep practitioners informed about HIPAA's relationship and intended co-existence with well-conceived state law discovery practices.